Court Rules Civil Marriage Null and Void Due to Existing Customary Union

The Eastern Cape High Court in Mthatha has declared a civil marriage null and void after finding it was contracted while one party remained bound by an existing customary marriage. In the case of N.N v B.N, Acting Judge Mhambi ruled that a civil marriage between the late V. N. and B.N., registered in November 2017, was invalid because the deceased remained married under customary law to his first wife, N.N., whom he had wed in 1978.

The first applicant, N.N., had entered into a customary marriage with the deceased in 1978 following traditional lobola negotiations. Her family received seven live cows and various cash payments totalling R65, including amounts known as uswazi, imvula mlomo, isazimzi, and igqeshe. The union produced four children, though one predeceased the parties. The couple separated in 1998 while the deceased was working at Welkom mines, but crucially, no formal divorce decree was ever obtained. The customary marriage remained unregistered until after the deceased’s tragic death in November 2023, when he died by suicide without leaving any note.

The first respondent, B.N., opposed the application, claiming she had been informed by the deceased that he had “expelled” his first wife and was free to marry. She alleged that a traditional welcoming ceremony was performed for her in 2022, and that the deceased had telephonically informed his first wife of his new marriage in her presence. However, Judge Mhambi found the first applicant’s version more credible, particularly as it was supported by confirmatory affidavits from the deceased’s younger brother and a local headwoman who witnessed the original customary marriage ceremonies.

The judgment emphasises a critical principle in South African customary law: that customary marriages can only be dissolved by a court decree of divorce, not by mere separation, desertion, or unilateral declarations by either spouse. “Absent a decree of divorce issued by a competent court, a customary marriage subsists and remains valid,” Judge Mhambi ruled, citing section 8 of the Recognition of Customary Marriages Act,¹ which states that customary marriages may only be dissolved by a court by a decree of divorce on the ground of irretrievable breakdown of the marriage.

The court rejected arguments that desertion of the matrimonial home or alleged “expulsion” could dissolve the customary union, referencing recent North Gauteng High Court precedent that it is only the courts that are empowered to dissolve the marriage and not the defendant’s mere desertion of the marital home. The judgment follows established Supreme Court of Appeal precedent in cases like Netshituka v Netshituka,² which held that civil marriages contracted while one party remains bound by an existing customary union are nullities.

The court ordered that the customary marriage between the first applicant and the deceased be registered within 15 days, and directed estate administrators to recognise the first applicant as the deceased’s widow and her children as legitimate heirs.

You can read the full N.N v B.N judgement here.

Written by Theo Tembo